X & Anor v Z & Ors
[2023] EWFC 41
AB (a child), Re
21 March 2024
[2024] EWHC 586 (Fam)
High Court
A couple adopted their baby in the USA after surrogacy. They also wanted a UK parental order for legal reasons. The court said the US adoption didn't stop them getting the UK order because the laws are about different things: one about who the parents *are* legally, the other about the facts of how the baby was born. Both orders exist, clarifying who are the legal parents in both countries.
Key Facts
- •AB was born through gestational surrogacy in the USA.
- •Commissioning parents (FG and GH) adopted AB in the USA in 2022.
- •The US adoption order is recognised in England and Wales.
- •Commissioning parents applied for a UK parental order under the Human Fertilisation and Embryology Act 2008 (HFEA 2008).
- •The question before the court was whether the US adoption order prevented the grant of a UK parental order.
Legal Principles
An adopted person is treated in law as if born to the adopters.
Adoption and Children Act 2002 (ACA 2002), s 67(1)
For a parental order, the child must have been carried by a woman who is not one of the applicants.
HFEA 2008, s 54(1)(a)
There's a distinction between legal parentage (status) and biological parentage (fact).
H v R (No 1) [2020] EWFC 74; Re L and Re M [2022] EWFC 38; X v Y [2020] EWHC 1829 (Fam)
HFEA 2008, s 54(1) focuses on factual criteria for jurisdiction, not legal status.
HFEA 2008, s 54(1)
A surrogate mother is treated as the child's legal mother before a parental order, unless there's an adoption.
HFEA 2008, s 33
Outcomes
Parental order granted.
The court distinguished between the factual criteria for a parental order (HFEA 2008) and the legal status created by adoption (ACA 2002). The US adoption didn't change the fact that the surrogate carried the child, fulfilling the factual requirement of HFEA 2008. The parental order clarifies the applicants' legal parentage without affecting the existing US adoption.